The important issue presented by this appeal is whether the granting to public school teachers of paid leaves of absence for religious purposes by a district board of education is a negotiable term and condition of employment. On the petition of the board for a scope of negotiations determination, the Public Employment Relations Commission (PERC) held that the granting of such leaves, which otherwise would qualify as a term and condition of employment, would nevertheless be an abridgment of the Establishment Clause of the First Amendment to the United States Constitution, and thus was outside the scope of collective negotiations and not arbitrable.

A teacher in the employ of the Hunterdon Central High School Board of Education (board) submitted a written request for permission to take December 8, 1978 as a "religious leave day." The board's personnel director granted the request on condition that the leave be taken either without pay or charged against the allowable number of leave days with pay for personal reasons, as provided in the contract between the board and the Hunterdon Central High School Teachers' Association. The teacher protested, claiming discrimination in that other teachers had been paid for absences on religious grounds.

After the teacher unsuccessfully sought redress through the contractual grievance procedure, the association availed itself of the arbitration provision in the contract and served upon the board two demands for arbitration. One alleged a "[u]nilateral change in temporary leave policy -- loss of religious holidays." The other complained of "[i]mproper denial of religious holidays." The remedy sought was "[g]ranting of said religious holidays -- restriction of personal days." The board filed with PERC a Petition for Scope of Negotiations Determination. The issue raised therein was whether "a public employer and public employees [may] agree to allow certain members of the bargaining unit to take days off from work for the purpose of religious observation without a deduction of either a personal day, vacation day or a day's wage." Arbitration was voluntarily stayed pending PERC'S consideration of the petition.

In due course PERC issued a Decision and Order in which it conceded that "interpreting matters of constitutional law is not within our area of expertise," but nevertheless held as follows:

On its appeal from this decision the association first disputes the jurisdiction of PERC to dispose of the scope issue on a constitutional basis, contending that by doing so PERC usurped the function of the courts. It is to be noted that the association did not resist the board's scope petition on that ground. However, we need not pursue the matter of possible waiver because we are satisfied on the facts here present that PERC did not exceed its jurisdiction.

PERC'S authority to define the scope of collective negotiations is found in the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. , specifically § 5.4(d), which provides:

The commission shall at all times have the power and duty, upon the request of any public employer or majority representative, to make a determination as to whether a matter in dispute is within the scope of collective negotiations. The commission shall serve the parties with its findings of fact and conclusions of law. Any determination made by the commission pursuant to this subsection may be appealed to the Appellate Division of the Superior Court. [Emphasis supplied.]

The area of mandatory negotiation generally encompasses terms and conditions of ...

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